Joel Trachtman at International Economic Law & Policy blog and Julian Ku at Opinio Juris are commenting on the role of international law in shaping US behavior, in this case with respect to compliance with WTO rulings.
As Joel points out, “[t]raditional realist political science considers traditional international law ‘epiphenomenal,’ meaning that the real action is in hard power politics, and the law does not affect behavior.” He thinks that recent US actions to eliminate certain cotton subsidies and repeal the Byrd Amendment (that’s the one transferring anti-dumping duties levied on foreign firms to their domestic “victims”) in order to comply with WTO rulings suggest the realist approach is incomplete.
Julian agrees (with qualification): “As a legal matter, of course, it demonstrates that yes, the U.S. does sometimes comply with international tribunal decisions, as long as there is political will to do so.” He clarifies in a comment: “I do think the ‘law’ has some independent effect on Congress’ decision, but it would be a mistake to consider it the only cause of Congress’ action.”
I think US compliance here does not demonstrate that international law has independent force. See below the fold for the realist take on WTO compliance by the US.
The reality is that the US complies with international law only where compliance serves its broader interests. In some limited cases, it will appear that compliance with the law, because it exacts a nominal toll, is itself an independent motivation. But this misses the larger context. The US — the hegemon — is threatened by no serious repercussions for failing to adhere to the tenets of international law. Law is only as good as its enforcement, and, in truth, enforcement in the international arena is vanishingly small, unless it is the US doing the enforcing.
The WTO itself has no authority or ability to enforce its rulings, so the impetus for compliance must be external to the institution. The US complies with WTO rulings because more international trade, even under the auspices of the WTO, is better than less. Continued US compliance with WTO rulings maintains the WTO as a viable institution to promote international trade, and this is worth the occasional nominally-costly ruling.
At the same time, it is true, the WTO authorizes its members to retaliate for non-compliance. And retaliation may have positive cost to the US. So the US may comply not out of respect for the WTO’s “laws,” but because other members of the WTO (notably here, Brazil) may retaliate. Of course, they could have retaliated even in the absence of the WTO, so it’s not clear how the WTO’s “laws” change anything. Perhaps the existence of the institution provides rhetorical and normative levers that shift the political consequences for its members, inducing (at least the non-hegemonic) states to maintain levels of retaliation within proscribed bounds. But, if true, this suggests that the WTO constrains rather than expands other states’ abilities to induce compliance from the US.
US compliance with these WTO rulings — with what appears to be international law — fits within the realist paradigm: compliance is forthcoming when it serves a state’s interests, and not when it doesn’t. What we label international law thus has no more consequence than any other punitive device available to international actors, whether nominally “legal” or not, and even the law is only as good as the threat of force that backs it up.
For a related take, see this post by Seth Weinberger at Security Dilemmas.
I have a couple points I wanted to make in response to your interesting post. Although I’m not normally one to overestimate the importance of international law, I have to disagree that there is a realist explanation for U.S. compliance in the two WTO cases mentioned, Byrd Amendment and Cotton. In both situations, the laws at issue were passed by Congress to give domestic producers an advantage in competing with foreigners. Congress was certainly not interested in promoting free trade when they passed the laws. Rather, it was trying to distort trade in the favor of U.S. companies. After the WTO decision, it was a combination of the threat of WTO-authorized retaliation from U.S. trading partners, as well as domestic pressure from key interest groups, that brought about the repeal of the measures. Thus, I disagree with your statement that: “The US complies with WTO rulings because more international trade, even under the auspices of the WTO, is better than less.” The U.S. was in fact quite happy to distort and limit trade using the laws at issue, which is why the measure was passed in the first place.
In addition, with respect to your statement that other Members “could have retaliated even in the absence of the WTO, so itâ€™s not clear how the WTOâ€™s â€œlawsâ€? change anything,” I guess that’s true in a sense. But without the WTO their retaliation would not have been very effective, because the U.S., as the far bigger economy, could have erected its own, much higher barriers in response. With the WTO, it cannot (legally, at least, and in practice it has not). Further in relation to this point, you note that “the US may comply not out of respect for the WTOâ€™s â€œlaws,â€? but because other members of the WTO (notably here, Brazil) may retaliate.” But the WTO’s laws explicitly authorize such retaliation, as long as certain rules are followed. So, the retaliation procedure is part of WTO law.